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Legal Clinic

Stalling Tactics

Do union representatives -- who repeatedly decline or fail to attend meetings to represent an employee -- waive the union's representation rights? What regulations apply in such an ongoing situation?

Monday, October 17, 2011
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Question: Union-stalling tactics are a major issue at the organization in which I work. When a manager comes to HR with a workplace issue that needs to be resolved with the union, the union representative invariably declines the meeting, saying the dates are conflicts. Are there any regulations that determine how many offers of dates and times the agency / manager must give the union to set up a meeting? I was told many years ago, that you must give the union three dates and times to meet, and that was all that was required -- is that correct? Also, if the union representative fails to attend the meetings as scheduled, has the union waived their right to represent the employee?

Answer: There are no bright-line regulations that determine how many offers of dates and times the union must be given in order to set up a meeting. Further, no hard-and-fast rule has evolved with regard to the number, frequency and duration of meetings between the parties.

If the union fails to attend the meetings that have been scheduled, there is little chance that the union will be found to have waived their right to represent employees absent a "clear and unmistakable" waiver by the union of these rights.

In 2007, the NLRB rejected the contrary position of two federal appeals courts and stuck to its long-standing rule that a unionized employer may only unilaterally implement new work rules, differing wage rates, changed hours or similar workplace changes if there has been a "clear and unmistakable waiver" by the union of the union's right to bargain. Provena Hosps., 350 N.L.R.B. 808 (2007).

So, a waiver of a union's right to representation and bargain will not be inferred and can not be implied. A waiver must be explicit, and it doesn't sound like the union in your case has made any explicit statement disclaiming its right to represent your employees.

Upon reading your question, it does sound, however, that you believe that the union representative may be avoiding meetings and negotiations with the employer as a result of bad faith. Notably, while the Act does not prescribe any particular frequency with which the parties are required to negotiate, Section 8(d) of the NLRA does expressly require them "to meet at reasonable times and confer in good faith with respect to ... the negotiation of an agreement." 29 U.S.C. ยง 158(d) (emphasis added).

The Board has held in numerous cases that a party who limits and delays meetings has not met its obligation to meet and bargain, and has violated Section 8(a)(5) of the Act. Lancaster Nissan, Inc., 2004 NLRB LEXIS 607, at *12 (N.L.R.B. Sept. 30, 2004), aff'd, 344 N.L.R.B. 225 (2005), enforced, 233 Fed. Appx. 100 (3d Cir. 2007).

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The law in this area is well settled -- procrastination in scheduling meetings, the willful avoidance of meetings or resorting to delaying and evasive tactics is considered evidence of bad faith. State Plaza, Inc., 2006 NLRB LEXIS 342, at *20-21 (N.L.R.B. Aug. 25, 2006); Exch. Parts Co., 139 N.L.R.B. 710, 714 (1962), enforced, 339 F.2d 829 (5th Cir. 1965); Crane Co., Deming Div., 244 N.L.R.B. 103, 111 (1979); ACL Corp., 271 N.L.R.B. 1600, 1603 (1984); Calex Corp., 322 N.L.R.B. 977, 978 (1997).

Further, the persistent failure to agree to meet at suggested times, and the canceling of scheduled meetings without proposing additional dates is evidence of bad-faith bargaining. State Plaza, Inc., 2006 NLRB LEXIS 342, at *20-21; Hamilton Standard Div. of United Techs. Corp., 296 N.L.R.B. 571, 579 (1989).

If you believe that the failure of the union official to attend the scheduled meetings is, in fact, the result of bad faith, you should consult with labor counsel as your employer may want to file a charge against the union with the Board.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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